Author 



Title... 


Imprint 


16 - 47372-3 


GPO 


















;; ; •• •;• 

• ;•* • 

I* Wi V.% i V «*«5 

■ ' ».v, /. • :»> 


. a • ,’.v 


• # * 


v 

• •: v » 


P ^Vv-A V ; : 

%'iyh • * »•& 

,V ' .'.V 

. . INI 1 , ■/»'/. 

. • ''b V/| i * t 




'!vV 


«♦» * ■ 

. • • < * • 



y • 

. 

. V* V. V 

' . 'X.v A 1 ' . 

• • • Cl!*' v, 

• * fV‘;'J ’ 

• I »;< 


• f 

. • • r« 

$§ 

: 








•v>:v, : 

_ .v- \* 1 *. 

• • » • . » 

(• * . ■ . 


■ *i 

.V»' 

► i«• 

• V 

'At;. 

■ »*!*> 


• ri 
















































Substitute , proposed by Mr. Leigh , of Diikolddle , 
the Preamble and Resolutions) on the subject of the 
right of the State Legislatures to instruct their Sena* 
tors in the Congress of the United States. 













T HF, General Assembly of Virginia, having at the last session, 
after mature deliberation on the subject, and under a solemn 
conviction that the institution of the Bank of the United States was 
unconstitutional, instructed the Senators of this state in Congress* 
to oppose the renewal of the charter of that bank, it has since seen, 
with mingled regret and displeasure, the authority of its instruction 
denied by one Senator and disobeyed by the other. 

No man, however exalted by station or character, could be so 
considerable as to excite the resentment of this Assembly—a re- 
resentment unworthy its own dignity, and in a manner honorable to 
its object: it will never descend to inflict personal injury or insult 
on any individual; it is withheld at once by its justice, its benigni¬ 
ty and its pride, from indulging in itself, or exciting in others, the 
spirit of persecution or revenge ; least of all, can it ever be so de¬ 
void of self-respect, as to enter into an altercation with its own ser¬ 
vants. But, under present circumstances, when a right of vital, 
importance, the prostration of which might ultimately affect the 
existence of the state governments, the balance of the constitution# 
and the integrity of the union, is openly questioned and denied, if 
this Assembly were to pass the subject over in silence, it might, per¬ 
haps properly, be inferred, that it reti*acted fcomfits claim of right 
in humble submission, or abandoned it as an idle, or yielded it as an 
unjust, pretension. 

Whether the General Assembly has been guilty of art act of 
usurpation, or its senators of culpable disobedience, let the w r or!d 
judge. This Assembly will never disdain to give the reasons of its 
conduct. 

There can be no doubt, that the scheme of a representative re¬ 
public, was derived to cur forefathers from the constitution of th© 
English House of Commons; and that that branch of the English 
government, whatever it be now in practice, was in its origin, and 
in theory always has been, purely republican, it is certain too, 
that the statesmen of America, in assuming that as the model of 
our own institutions, designed to adopt it here in its purest form, 
and with its strictest republican tenets and principles. It becomes, 
therefore, an inquiry of yet greater utility than curiosity, to ascer¬ 
tain the sound doctrines of the constitution of the English Houso 
of Commons, in regard to this right of the constituent to instruct 
the representative. For the position may safely he assumed, that 
the wise and virtuous men, who framed our constitutions, thorough¬ 
ly versed, as they undoubtedly were, in the English doctrines of r<* 
presentation, designed, that in the United States, the constituent 
should have at least as much, if not a great deal more influence. 






4 

^"rescnfative, than was known to have existed, time im~ 
T vrial io England, Let us then interrogate the history of the 
BrbEh nation : Let us consult the opinions of their wise men. 

In-timers abound in parliamentapy history qf formal instructions 
f o,ii the constituent to (he representative, of w(iich, though doubt- 
I -:s a stricter search would disclose many more, the following may 
$ ;dce :—In 1640, the knights qf the shire for Dorset and Kenh in¬ 
formed the commons, that they had in charge from their const it li¬ 
ft f«, «e\en articles qf grievances, which they accordingly laid be¬ 
fore the House, where they were received and acted or*. In the 
53d'year of Charles II. the citizens of London instructed their 
tneml res to insist on the bill for excluding the Duke of York (after¬ 
wards King James II.) from the succession to the throne ; and their 
feriresehtaVirp said. ** that his duty to his electors obliged him to 
Vote for the bill’V-At a subsequent election, in 1681, in many pla¬ 
ces, formal instructions were given to the members returned, to ip- 
si*t on the same exclusion bill: we know, from history, how uni¬ 
formly and faithfully those instructions were obeyed. Instructions 
arc still extant, on the subject of the relations between England 
and France in 1701. The peace, of Utrecht gave occasion, in 
1714, to numerous instructions from various parts qf England: 
those of London, particularly, are in the most authoritative 
tone. In 1741, the citizens of London instructed their members to 
vote against standing armies, excise laws, the septennial bill, and a 
long train of evil measures, already felt, °T anticipated ; and ex¬ 
pressly affirm their right of instruction—« we think it (say they) 
our duty, as it is our undoubted right, to acquaint you, with what 
ive desire and expect from yon, in discharge of the great trust ice re¬ 
pose in you, and what we take to be your duty as our representative * 
&c.” in the same year, instrqctions of a similar character were 
sent from all parts of England. In 1742, the cities of London, 
Bristol, Edinburgh, York and qi$ny others, instructed their mem¬ 
bers in parliament, to seek redress against certain individuals sus¬ 
pected to have betrayed and deserted the cause of the people. And 
in 1769, the city of London instructed its members to guard with 
Watchful diligence, the trial by jury, the habeas corpus act— arpi 
on various other points.—It will he remarked, that 9ome of the in¬ 
stances above quoted relate to points of constitutional law, ppd some 
to those of policy, and that, most of them occurred about or since 
the revolution in 1688, at which time, and by which event, the Eng¬ 
lish politicians tell us, their constitution was settled, the rights of 
the people ascertained, an<l the powers of every branch of their ga- 
vennucut limited and defined. 



Instances also are on record of the deliberate formal acknowledge 
pient of the right of instruction by the House of Commons itself, 
^specially in old times. Thus the commons hesitated to grant sup¬ 
plies to King Edward III. till they had the consent of their constitu¬ 
ents , and desired that a new parliament might he summoned, which 
flight he prepared with authority from their constituents *. Passing 
by other ancient precedents, one more instance shall he added, oc¬ 
curring in modern t imes, in the purest «ra of the English constitu¬ 
tion, tlie reign of William III. of an acknowledgment by the Eng¬ 
lish commons (in substance r f t least, if not in terms) of their abso¬ 
lute dependence on their constituents j }t will be found in the propos¬ 
ed remonstrance of the commons, on the occasion of the king refus¬ 
ing his assent to the hill for free ami impartial proceedings in par¬ 
liament. Moreover, we are informed by authentic history, that 
(formerly “ when the commons gave their answer touching the sub¬ 
sidy demanded for the wars, they desired leave to return into the 
country, to confer with their neighbours and again, that the com¬ 
mons 44 often refused to agree to propositions from the court, for 
this reason only, that they could not, till they went home and consult¬ 
ed with their constituents.” 

“ Instructions (says a mqipber of the House of Commons) ought 
to he followed implicitly , after the member lias respectfully given 
ids constituents his opinion of them : Far he it f rom me to oppose 
toy judgment to that of 6000 of my fellow citizens.”-—" The prac¬ 
tice (says another) of consulting our constituents was good. 1 wish 
it was continued. We can discharge our duty no better , than in fol¬ 
lowing the direction of those who sent us hither. What the people 
rhuse is right , because they chuse it .”-—It were an endless labor to 
collect a catalogue of illustrious statesmen, the wisest and best 
England ever saw, who have, from time to time, publicly subscribed 
to these opinions : but it were impossible not to single out the name 
of Russel , who is particularly recorded to have acceded to the sen¬ 
timent last quoted. 

Without referring to the minor political authors, without num¬ 
ber? as they are without fame, who have maintained these positions 
(quofed from one of them )—“ that the people have a right to in¬ 
struct their representatives—that no man ought to be chosen that 
will npt receive instructions—-that the people understand enough of 
the interests of the country to give general instructions—that it 
was the custom formerly to instruct all the members, and the na¬ 
ture of deputation shews that the custom was well grounded”—it is 
proper to mention, that the great constitutional lawyer Coke, tho 
he flourished in the days of Queen Elizabeth, (whose attorney gene¬ 
ral he was) when prerogative was stretched to its uttermost 
bounds—and Sydney, the martyr of freedom and republicanism, eon- 


6 


©up on tins head—Coke says “it is the custom of parliament, when 
any new device is moved for on the kind's behalf, for his aid, and the 
like, (bat the commons mav answer, they (hire not a%ree to it without 
conference with their counties.” And Sydney (while he admits that 
the constituents cannot call the representatives to account, other¬ 
wise than by not re-electing them, if they disapprove their con¬ 
duct) maintains—“ that members derive their power from those 
that chusethem—that those who give power, do not give an unre- 
» f *rved power—that many members, in all ages, and sometimes the 
whole body of the commons have refused (o vote, till they consulted 
with those who sent them —that the houses hare often, adjourned to 
fire them time to do so- —and if this were done more frequently, or 
if cities, towns and counties had on some occasions given instructi¬ 
ons to their deputies, matters would probably have gone better in 
parliament than they have done.” In strict union with these opi¬ 
nions of Sydney, are the inferences deducihle from all the princi¬ 
ples of go ven men t, maintained and established, concerning the na¬ 
ture of political trusts, by the apostle of truth and liberty, the im¬ 
mortal Locke. Blaekstone indeed dissent s—lie. denies the right of 
the constituent to intructthe representative : but while (he praise 
of classic and of legal learning is universally accorded him, the 
whigs of England (who concur with us, that government is a trust 
for the benefit of the governed) have uniformly denied the ortho¬ 
doxy of his politics. The celebrated Edmund Burke, a man, it 
must he admitted, of profound knowledge, deep foresight and tran¬ 
scend ant abilities, disobeyed the instructions of his constituents; 
yet, by placing his excuse on the ground that the instructions were 
but the clamor of the day, he seems to admit the authority of in¬ 
structions soberly and deliberately given : for lie agrees, “ he ought 
to look to (heir opinions,” (which he explains to mean their perma¬ 
nent settled opinions) “ but not to the flash of the day;” and he 
says elsewhere, that he could not hear to shew himself “ a repre¬ 
sentative, whose face did not reflect the face of his constituents—a 
face that did not joy in their joys and sorrow in their sorrows.” It 
is remarkable, that notw ithstanding a most splendid disnlny of 
warm and touching eloquence, the people of Bristol would irot re¬ 
elect Mr. Bu rke, for this very offence of disobeying instructions* 

It appears, therefore, (hat the right of the constituent to instruct 
the representative, is firmly established in England, on the broad 
basis of the nature of representation : The existence of that right, 
there, has been demonstrated by the only practicable evidence, by 
which the principles of an unwritten constitution can be ascertain¬ 
ed—history and precedent. 

If in England, from the days of the youth and innocence of par¬ 
liament, while yet the free spirit ofher Saxon laws remained in eri- 


ginal simplicity and purity—from the earliest, to the latest, periods 
of her eventful history'—-throughout oil the convulsions and vicissi¬ 
tudes she lias undergone—the right to instruct their representa¬ 
tives, has been unceasingly claimed by the people, often exercised, 
sometimes formally acknowledged, and frequently implicitly obey¬ 
ed, by the Mouse of Commons; if their greatest constitutional 
lawyers, their purest patriots, their ablest statesmen, and those 
profound authors, who first revealed to the modern world the true 
nature of government, have under various circumstances, and at 
disjointed periods of time, concurred in sanctioning, to the people of 
England, this great right of instruction; who should presume to 
deny, to the freemen of America, the same degree of control over 
their representatives ? If in England, over whose government, 
even in its theory and utmost purity, the people have no direct con¬ 
trol, except in one branch of the Legislature—whose system of re¬ 
presentation, compared with that of the United States, is at best 
but a numerous open aristocracy—where the representative is eli¬ 
gible from the great body of the nation, from the wide extent of 
the empire, without any qualification of local residence—the right 
of instruction has been uniformly asserted and admitted and enjoy¬ 
ed; much more unquestionable is it in the United States, where 
the people are acknowledged to be the only legitimate source of all 
legislation—where the representative and constituent bodies are 
more intimately connected by the constitution—where none can be 
a Representative or Senator who shall not, when elected, bean in¬ 
habitant of the state for which he is chosen. 

It is deeply to be lamented, that in this country, the collection 
of the opinions of our own wise, good and great men, should be, as 
it is, so scanty and so rare. The doctrines of statesmen, most 
deeply skilled in political science, and especially in the principles 
of representative government, have sunk into oblivion, as them¬ 
selves have sunk into the grave. The voice of our fathers is heard 
by their children, only in the murmurs of indistinct tradition—that 
voice, which might minister light to our minds, harmony to our 
opinions, stability to our principles, and veneration to our instituti¬ 
ons. The authority of American statesmen in support of the gene¬ 
ral right of instruction, though it were certainly the best, is the 
least of all capable of distinct citation. Happily, that is not now 
necessary: how generally the right of instruction (as betiveen 
the people and the state governments particularly) has been ac¬ 
knowledged, how little questioned, how often exercised, and how 
dearly valued, in Virginia at least, the memory of every man must 
abound with proofs. 

The General Assembly therefore rest satisfied, that in exercising 
the right of instructing the Senators in Congress, it has advanced 


no novel pretension, as it >vill presently appear if has made no un¬ 
just one : and that, if example could justify disobedience to such a 
command, even that justification is wanting on the present occasion. 

To view the subject upon principle.—The right of the constituent 
to instruct the representative body, seems to result, clearly and con* 
clusively, from the very nature of the representative system. Thro* 
means of that noble institution, the largest nation may, almost as 
conveniently as the smallest, enjoy all the advantages of a govern¬ 
ment by the people, withoutany of the evils of democracy—precipita¬ 
tion, confusion, turbulence, distraction front the ordinary ami useful 
pursuits of industry. And it is only to avoid those and the like mis¬ 
chiefs, that representation is substituted for the direct suffrage of 
the people in the office of legislation. The representative, there¬ 
fore, must in the nature of things, represent his own particular con¬ 
stituents only. He must, indeed, look to the general good of the 
nation ; but he must look also, and especially to the interests of his 
particular constituents as concerned in the common w eal ; because 
the general good, is but the aggregate of individual happiness; He 
must legislate for the whole nation: but laws are expressions of 
the general will: and the general will is only the result ofindividu* 
al w ills fairly collected and compared : in order to which collection 
and comparison (that is, in order to express the general will, in or¬ 
der to make laws) it is plain, that the representative must express 
the will, and speak the opinions, of the constituents that depute him. 

It cannot be pretended, that a representative is to be the organ of 
his own will alone ; for then, he would be so far despotic. He 
must be the organ of others—of whom ? not of the nation, for the 
nation deputes him not; but of his constituents, who alone know, 
alone have trusted, and can alone displace, him. And if it be his 
province and his duty, in general, to express the will of his consti¬ 
tuents, to the best of his knowledge, without being particularly in¬ 
formed thereof; it seems impossible to contend, that he is not bound 
to do so, w hen he is so specially informed and instructed. 

The right of the constituent to instruct the representative, there¬ 
fore, is an essential principle of the representative system. It may 
he remarked, that wherever representation has been introduced, 
however unfavorable the circumstances under whiekjt existed, how¬ 
ever short its duration, however unimportant its functions, however 
dimly understood—the right of instruction has always been regarded 
as inseparably incidental to it. Not to mention other instances, 
which history affords, we are informed that “ the procurudores , or 
members for Castile in the cortc held at Madrid, in the beginning of 
the reign of Charles V. excused themselves from granting the sup¬ 
plies he desired, because they had received no orders f rom their con¬ 
stituents ; and afterwards, receiving express orders not to do it. 


0 


they gavci Charles a flat denial. The same was the custom i& 
France before that country was enslaved. The General Assem¬ 
blies being laid aside, the same custom is still (latter end of 17 th 
century) used in the lesser assemblies of the states in Languedoc and 
Bretagne ,- 9 

It is a maxim of all governments founded on contract, that no 
man can be bound by laws to which he has not given his assent, ei¬ 
ther directly; or mediately by bis representative, or virtually thro* 
representatives chosen by his fellow citizens, amongst whom he 
dwells, having the same general and local interests with himself* 
If the right of the constituent to insnruct the representative be de¬ 
nied, a law might he enacted, according to all the forms of the con¬ 
stitution, and yet contrary to the express will of every man in th© 
community, the individual representatives themselves only except¬ 
ed. If one representative may disobey the instructions of his con¬ 
stituents, the whole representative, may disobey the whole constitu¬ 
ent, body. If then, a law were proposed, against which the natioa 
solemnly and unanimously protested, and w hich the people with 
one voice instructed their representatives to oppose; if the repre¬ 
sentative might lawfully disobey, and- should in fact disobey? such 
instruction ; here would he a law, binding on the people, enacted not 
only without, hut directly against, their consent. 

A representative has indeed a wide field of discretion left to him $ 
and great is the confidence reposed in his integrity, fidelity, wis¬ 
dom, zeal; but neither is the field of discretion boundless, nor the 
extent of confidence infinite : and the very discretion allowed hi nip 
and the very confidence he enjoys, is grounded on the supposition* 
that he is charged with »lie will, acquainted with the opinions, and 
devoted to the interests of his constituents. 

But although the position be admitted? which indeed it seemS 
Impossible to deny, that the people have a right to instruct their 
immediate representatives, or that the people composing each state 
in their sovereign capacity, may instruct their Senators in Con¬ 
gress 5 it may still be denied, that the state legislatures have any 
such right of instruction. 

It is obvious to remark,In the first place, that those who alio# 
to the people of each state, the exercise of this act of sovereignty, 
the instruction of their senators, and deny the same power to the 
state legislatures ; give us the empty theory, and deny us the bene¬ 
ficial practice of such instructions. It is difficult to conceive how 
the people can give such instructions, otherwise than through their 
$tate legislatures. 

The several state Constitutions—saving to the people the solo 
right to alter, amend or abolish the forms of government—saving 
*aiu other great natural rights, which the legislatures are for- 

4 £ 



bidden to touch—and excepting certain powers, specified in the con¬ 
stitution of the United States, which are transferred by the people 
and by the states, from the state governments to the general govern¬ 
ment—do certainly vest in the state legislatures, every power and 
attribute of sovereignty, which the people themselves would other¬ 
wise exercise in person. Those legislatures are in fact, in the dai¬ 
ly exercise of all powers belonging to the state sovereignty, except 
those thus forbidden to them. Now, the power to instruct the Se¬ 
nators of the states in Congress, has not been forbidden by the state 
constitutions to the state legislatures, and retained by the people in 
their own hands. Therefore, the state legislatures may exercise 
this act of sovereignty, this right of instructing their senators, as 
properly as they may exercise any of those powers, which they ex* 
ercise daily, without any doubt about their right, and which yet are 
not granted to them by any express delegation. 

Of this doctrine, the w hole history of all the American govern¬ 
ments proves the justness. The slate legislatures sent deputies to 
the first Congress ; they formed the old articles of confederation of 
the United States ; they sent deputies to the federal convention that 
framed the present constitution; and they called the conventions of 
the people which ratified that constitution. Had they any express 
grant of pow er to perform these important acts ? Yet, was it ever 
doubted, that they had a rightful power ? All these great acts of so¬ 
vereignty are as much beyound the range of ordinary state legisla¬ 
tion, as is this power of instructing Senators. 

But this right of the state legislatures to instruct their Senators 
in Congress, is yet more conclusively demonstrable from a view of 
the federal constitution, taken with its context, the old articles of 
confederation. 

The articles of confederation were certainly nothing more than 
a perpetual solemn league and covenant between the state sove¬ 
reignties. The federal convention was deputed to amend ihem. It, 
however, proposed a new system, which, in its construction of the 
House of Representatives, departs from the principles of the 
league, and is clearly national; but in that of the senate adheres 
to those principles, and is clearly federative—federative, as well in 
the equality of representation as in the mode of election. This was 
no more, in effect, than engrafting so much of the former league 
upon the new constitution ; making that branch of the government 
as the whole had formerly been, the representative of the state so¬ 
vereignties; aud placing it, like the Congress under the articles of 
confederation, under the influence of the state legislatures. Now 
the right of the state legislatures to instruct their delegates in Con¬ 
gress under the confederation, never was doubted. The senators 
under the present constitution stand in the same relation to the 

# 


11 


state government. The senate was designed, in truth, to form the 
balance of the new constitution ; to cheek the consolidating tenden¬ 
cies of the other principles of the system, and to preserve the state 
governments inviolate. Such was certainly the contemporaneous 
exposition of the subject. 

It has been asked by some*—if tlie state legislatures may in¬ 
struct their senators, why may not the colleges of presidential 
electors instruct the president ? The right of the state legislatures 
to instruct their senators, rests not solely on the ground that they 
elect them ; but if it did, there is no similitude between the electo¬ 
ral and legislative bodies, in regard to the right of instruction. In¬ 
stead of a parallel, there runs a contrast, between them. The for j 
mer exists; but a few weeks, is created for a single purpose, 
and when that is answered, is dissolved forever: the latter 
may be regarded as always in existence, is created for general 
purposes, and is the fair representative of the state sovereignties. 
No one electoral body elects the president and vice president; each 
gives only the votes of one state ; no one of them therefore, can, 
with any colour of right, claim control over officers elected by the 
electors of all the states : whereas the state legislatures have the 
exclusive election of their senators, who return to them for re-elec¬ 
tion. Every facility for action too, is possessed by the one ; to the 
i&ther it would be impracticable to act at all. Besides, the Presi¬ 
dent and the Senators are officers of very different character: he is 
truly the representative of the whole nation, elected by all, respon¬ 
sible to all ythey are the representatives of the states, elected by the 
states, responsible to the states; and w^e naturally look to our par¬ 
ticular representatives, to promote the objects we have at heart. 
To instruct the president w ere absolutely impossible. 

It has been argued, that if the state legislatures may instruct 
their Senators in Congress, so may also the state executives. But 
the state executives are clearly, in no case, the electors of the se¬ 
nators ; they are vested with the appointment during the recess of 
the legislatures, from mere necessity. And it is not the executive, 
but the legislative bodies of the states, that are clothed with the 
state sovereignties : this is the great distinction. 

The power of the state legislatures to interpose on questions of 
deep political interest, in the affairs of the general government, by 
w ay of instruction to their senators, and the obligation of such in¬ 
structions, are sustained by authorities, the weight of which will 
not be resisted. 

The celebrated authors of the Letters of Publius , speak the fol¬ 
lowing unequivocal language: “ If the majority (in the genei*ai 

government) should be really disposed to exceed the proper limits, 
the community will be warned of the danger, and will have an op¬ 
portunity of taking measures to guard against it. Independent of 


n 


parties in the nationallegUIatnre itself, as often as the period of 
discussion arrived, the state legislatures, who will alw ays be not on¬ 
ly vigilant, but suspicious and jealous guardians of the rights of the 
citizens against encroachments from the federal government, will 
constantly have their attention awake to the conduct of the national 
rulers, and will be ready enough, if any thing improper appears, to 
sound the alarm to the people and not only to be the voice , but if ne¬ 
cessary, the arm of their discontent .” Anifagain— ** It may safe¬ 
ly be received as an axiom in our political system, that the state 
governments will, in all possible contingencies, afford complete se¬ 
curity against invasion of the public liberty by the national authori¬ 
ty. Projects of usurpation caniiot he masked under pretences so 
likely to escape the penetration of select bodies of mm, as of the peo¬ 
ple at large. The legislatures will have better means of informati¬ 
on. They can discover the danger at a distance ; and possessing 
all the organs of civil power, and the confidence of the people, they- 
can at once adopt a regular plan of opposition, in w hich they can 
combine all the resources of the community. They can readily 
communicate with each other in the different states ; and unite their 
common forces for the protelion of their common liberty.” Even 
The Federalist, then, agrees that^the statelegislalures may interpose 
to prevent danger, or fo resist usurpation ; proportioning tlieir op¬ 
position to the magnitude of the evil. But how interpose? By 
sowing the seeds of faction in silence? or by arms? or by public 
and dignified instructions? Let not those, who deprecate intestine 
feuds and civil wars, deny the right or obligation of instructions. 

The Session of the General Assembly of Virginia, of 1799-1800, 
is memorable for “ the report of a committee, to whom was refer¬ 
red the communications of various states, relative to the resoluti¬ 
ons of the (then) last General Assembly of this state, concerning 
the alien and sedition laws.” In this celebrated stale paper, autho¬ 
ritative for the reasoning it contains, it became necessary to defend 
the state right of interposition in the affairs of the general govern¬ 
ment : and it is stated “ to he a plain principle, founded in common 
sense, illustrated by common practice, and essential to the nature 
of compacts, that where resort can be had to no tribunal superior to 
the authority of the parties, the parties themselves must be the 
rightful judges in the last rosort. whether the bargain made has 
been pursued or violated. The Constitut ion of the United States, 
•was formed by the sanction of the states, given hv each in its sove¬ 
reign capacity. It adds to the stability and dignity, as well as to 
the authority of the constitution, that it rests on this legitimate and 
solid foundation. The states then, being parlies to the constituti¬ 
onal compact, and in their sovereign capacity, it follows of necessi¬ 
ty that there can be no tribunal above their authority [it is the so-* 


13 


Yereig!! Authority of the states exercised hy the Legislatures that is 
here spoken of] to decide in the last resort, whether the compact 
tnade by them lie violated ; and consequently, that as parties to it, 
they must themselves decide in the last resort, such questions as 
may be of sufficient magnitude to require their interposition.” 

If the passages above cited be orthodox, the main proposition 
which hath been above urged, to prove the right of a state legisla¬ 
ture to instruct its senators, is established— that the state? legisla¬ 
ture is clothed with the general attributes of the state sovereignty . 

Those doctrines, too, afford a plain inference, that instructions 
from the constituent legislatures to their Senators in Congress, are 
public acts within the sphere of that portion of the state sovereign¬ 
ty, not retained by the people, nor delegated by the constitution of 
the United States to the general government, but represented and 
possessed by the state legislatures. 

And if those doctrines be correct, there will be an end also to that 
distinction, which has been insisted on, between instructions on 
constitutional points, which have been said not to he obligatory on a 
senator, and instructions on matters of policy, which are allowed to 
be obligatory. On the contrary, it would appear, that if there be 
any difference in the obligation of such instructions, those of the for¬ 
mer description are of the stronger obligation ; since the infraction 
of the bond of union, gives the states the strongest claim to int er¬ 
fere ; though measures of evil policy might he attempted, which 
Would equally jeopardize the independence of all, and consequently 
the happiness of each, as any violation of the constitution. • 

The General Assembly will not offer additional argument to for¬ 
tify the conclusive reasonining of The Federalist, or of the Assem¬ 
bly in 1799-1800, above referred to. 

At the session of the General Assembly of 1799-1800, also, various 
instructions were given to our then Senators in Congress. It is be¬ 
lieved that neither the right, nor the obligation of those instructi¬ 
ons w as then questioned. It cannot escape observation, that those 
instructions, as well as the report above mentioned, are sanctioned 
with the recorded assent of the same honorable senator, who has 
since denied the obligation of the senator to obey , while he admit¬ 
ted the right of the state legislature to instruct; which is precisely 
the relation, not between the state legislature and a senator, hut 
between it and a member of the house of representatives : a sen¬ 
ator is instructed ; a representative requested. The honorable sen¬ 
ator formerly voted to instruct our senators and to request our re¬ 
presentatives. To instruct —is not merely to recommend: an in¬ 
struction to a senator, in contradistinction to a request to a repre¬ 
sentative, implies a commatul. It is useless to offer proof, that the 
right to command implies the duty to obey. And it is hoped, that 


14 


the language of the honorabIe*senator was either not maturely con¬ 
sidered or not correctly reported. 

It hath been stated to the world, that the legislature of Virginia 
instructed their senators in 18 t) 8 , to use their best endeavours to ob¬ 
tain amendments to the Constitution of the United States, which 
would, in effect, give the state legislatures the right of recalling 
their respective senators in congress;—and that this instruction was* 
substantially disobeyed. The fact may have been as stated. It is 
only mentioned here, that it-may be remarked, that it passed with¬ 
out censure, only because it passed without notice. It never was 
understood as an act of resistance to instructions. 

Various objections have been urged to this claim of the constitu¬ 
ent, of a right to instruct the representative, on which it may be 
proper to bestow some attention. 

The first objection that comes to be considered, lies chiefly against 
the right o f the people to instruct their immediate representatives; and 
is grounded on the supposed impossibility of fairly ascertaing the 
sense of the constituent body. The impossibility fe denied ; it may 
often be matter of great difficulty, But then the duty of obedience 
resolves itself into a questioner Kit of principle, but of fact—whether 
the right of instruction has., been exercised or^ not. The represen¬ 
tative cannot; be bound by an instruction that is not given ; but that 
is no objection to the obligation of an instruction actually given* 
And, at least, this objection cannot apply to instructions voted by sv 
state legislature. 

It has been urged* that representatives are not bound to obey the 
instructions of their constituents, because the constituents do not 
bear the debates, apd therefore cannot be supposed judges of the 
matter to he voted. If this objection have force enough to defeat' 
the right of instruction^ it ought to take away, also, the right of re¬ 
jecting the representative at a subsequent election. For it might' 
be equally urged on that occasion, as against the light of instruc- 
lion, that the people hoard not the debate that enlightened the rep¬ 
resentative’s- mind-r-the reasons, that convinced his judgment, and 
governed his conduct. If the right of instruction be abandoned on 
this ground, the right of rejection should be yielded also. In other 
words, the principle, that mankind is competent to self govern¬ 
ment, should be renounced; The truth is, that our institutions 
suppose, that altho’ the representative ought to be, and generally 
will be, selected for superior virtue and intelligence, yet a greater- 
mass of wisdom and virtue still reside, in the constituent body, than 
the utmost portion allotted to any individual. 

But it has been said, that a state government may instruct its 
senators to violate the constitution of the U. States—that a state* 
ip actual insurrection against the general government, may instruct 


15 


Sis senators, to promote 'the cause of Tt&ellion : and it is ask th 
'whether the senator would be bound by'such instruction, to violate 
the constitution he had sworn to preserve, and to overthrow the 
government he had sworn to defend ? 

It may be answered, in the first place, that tlie particular in¬ 
struction, which forms the subject of present consideration, could 
by no possibility involve a breach of the constitution of the United 
States* It might, and in the opinion t>f this Assembly would, have 
been unconstitutional to charter the hank of the U. States anew; 
but surely, it could not possibly be deemed um&nstitutional, not to 
charter it. 

As to the rest, without determining the point, which has been 
taken for granted, that a state In open rebellion against the general 
government, would still be entitled to its representation in the senate 
of the U. States, which, to say the least, is extremely doubtful-** 
It is admitted without difficulty, that if a state instruct its senator 
to give a vote plainly unconstitutional, or to raise the standard of re¬ 
bellion,the senator h unt hound toobeysuch instruction. Every ease, 
such as that supposed, must stand on its own peculiar circumstan¬ 
ces : it supposes all bounds of right transcended, all legitimate rule 
prostrated : and the propriety of opposition must be determined by 
the nature ©f the injustice, the extent of the mischief, and the pru¬ 
dence of resistance. But it is no argument against the exercise of 
a lawful power, that It may he made the pretext for the assumption 
of an unlawful power. The right of instruction, rightfully exer¬ 
cised, with no evil intention, to no pernicious object, cannot be af¬ 
fected by the admission, that if either a state government, or the 
general government, become corrupt and ambitious, and usurp 
Tyrannical power, if may of right, and ought to be, resisted.— 
The admission is* cheerfully made. The General Assembly of Vir¬ 
ginia is ineapalde of affirming the exploded doctrine of non-resist¬ 
ance. 

Finally, it lias been objected, that the instructions of the consti¬ 
tuent are not obligatory on the representative, because the obligati¬ 
on insisted on is fortified with no sanction $ the representative cannot 
be punished for bis disobedience, and his vote is valid notwithstand¬ 
ing his disobedience. It is true, that there is no mode of legal pun¬ 
ishment provided for this offence, this default of duty ; and that the 
act of disobedience will not invalidate the vote. It is true, too, 
that a representative may perversely advocate a measure which he 
knows to be ruinous to his country ; and that neither his vote will 
be invalidated by his depravity, nor can he be punished by law for 
his crime, heinous as it surely is. But it does not follow, that the 
one representative is not hound to obey the instructions of his con¬ 
stituents, any more than that the other is not bound to obey the die- 


16 


fates of his consciences Both duties stand upon the same fbunrinti* 
• on, with almost a 11 the great political and litoral obligations. The 
noblest duties of man are without any legal sanction: the great mass 
of social duties—duties the most important, most sacred, mo t use¬ 
ful—our duties to our parents, to our children, to our wives, to 
our families, to our neighbour, to our country, our duties to God, 
are, for the most part, without legal sanction, yet surely not with¬ 
out the strongest obligation. The duty of the representative to obey 
the instructions of the constituent body, cannot be placed on higher 
ground. 

Such are the opinions of the General Assembly of Virginia, on the 
subject of this gr^at rigid of instruct ion, and such tiie general rea¬ 
sons on which those opinions are founded. The subject is suscep¬ 
tible of various other, and very strong, views, which are not pre- 
termitted, because they are not understood, but because they are 
deemed unnecessary, 

1. Resolved, therefore, that this Assembly doth highly and equal¬ 
ly disapprove the conduct of both the senators of this state in Con¬ 
gress, in relation to the subject of the bank of the U. States, and to 
the instructions concerning the same, given to the said senators, by 
tW General Assembly «t the last session. 

2. Resolved, That it is the indubitable right of the state legis¬ 
latures, to instruct their Senators in Congress, on all points, cither 
constitutional or politic, whenever the magnitude of the occasion 
shall require such interference ; and that, by consequence, it is the 
hounden duty of the senators to obey such instructions; provided the in¬ 
structions to be given and obeyed, require not the senator to com¬ 
mit a violation of the constitution, or an act of moral turpitude. 

3. Resolved, that after this solemn expression of the opinion of 
the General Assembly, on the right of instruction,*and the duty of 
obedience thereto, no man ought-hcnceforlh to accept the appointment 
of a Senator of the United States from Virginia, who doth not hold 
himself bound to obey such instructions. 






4 


f 


■*1 \ 




# 




■ 
















. 

•• 











































































) 








. 





















































































« 1 





























































































'■ A 










'A 






' 








*• 

: 
























* 







9 



























I 




1 





























































































































































































































































































































































































